Deconstruction and Reconstruction of the Sentencing Guidelines Part 2: A Dirty Little Secret

The empirical evidence the Sentencing Commission claims to have relied on in formulating the guidelines is “past practice,” i.e., the sentences typically given on average prior to the guidelines.

But there’s a dirty little secret – namely, that the Commission completely excluded probationary sentences, which were 38% of all sentences, from its calculation of the averages, so the averages are skewed grossly upward

And the Commission has acknowledged that the guidelines are in fact significantly more severe than “past practice” for the most frequently sentenced offenses in federal court, including drug trafficking, immigration offenses, and white collar offenses.

NOW THE BLOG:

Today’s post in my deconstruction series will be on what the empirical evidence the Sentencing Commission considered was and/or should have been. What the Commission looked to in formulating the original guidelines – according to then Commissioner and Circuit Judge, and now Supreme Court Justice, Breyer – was “past practice.” He explained in a subsequent law review article that the Commission reached “an important compromise [by] decid[ing] to base the Guidelines primarily upon typical, or average, actual past practice,” Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L. Rev. 1, 17 (1988), and asserted that the Commission produced “Guidelines that, by themselves, do not deviate enormously from average past practice,” id. at 24. This is corroborated, though a little less expressly, by the introduction to the guidelines, which speaks of an “empirical approach” based on “the wisdom of looking to those distinctions that judges and legislators have, in fact, made over the course of time.” U.S.S.G. Ch. 1, Pt. A, at 4. And the Supreme Court acknowledged the Commission’s claim about how it developed the guidelines in Rita v. United States, 551 U.S. 338 (2007), noting that the Commission “took an ‘empirical approach’ beginning with an empirical examination of 10,000 presentence reports setting forth what judges had done in the past.” Id. at 349. See also Gall v. United States, 552 U.S. 38, 46 (2007); Kimbrough v. United States, 552 U.S. 85, 96 (2007). But the Rita opinion then added an interesting qualifier – that the Commission had “then modifi[ed] and adjust[ed] past practice in the interests of greater rationality, avoiding inconsistency, complying with congressional instructions, and the like.” Rita, 551 U.S. at 349.

Is this use of “past practice” really what happened, however? Not quite. First, the Commission has hidden – or at least brushed over – a dirty little secret. The average sentences it used as a guide for the guidelines (no pun intended) completely excluded probationary sentences, which were 38% of all sentences. SeeUnited States Sentencing Commmission, Supplementary Report on the Initial Sentencing Guidelines and Policy Statements, Ch. 4 (June 18, 1987), available at www.fd.org and linked here. Adding 0 for each of those sentences obviously would have reduced the averages significantly.

Second, the Commission outright prohibited or labeled as “not ordinarily relevant” the consideration of offender characteristics such as employment, family responsibilities, and medical condition, see U.S.S.G. Ch. 5, Pt. H, which courts had almost always considered in the past. The Commission also required – for some offenses – increases in sentences for acquitted and uncharged crimes at the same rate as if the defendant had been convicted of the other crimes, which was probably not what most judges did in their past practice.

And it’s gotten worse. In the words of one commentator, the amendment process has been a “one-way upward ratchet increasingly divorced from considerations of sound public policy and even from the commonsense judgments of frontline sentencing professionals who apply the rules.” Frank Bowman,The Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105 Colum. L. Rev. 1315, 1319-20 (2005). This is a product of (1) Department of Justice influence with the Commission that far outweighs that of the defense bar and (2) Congressional action mandating amendments that are almost always aimed at toughening sentences for the “crime du jour.”

Indeed, the Commission has ultimately acknowledged that its guidelines differ significantly from “past practice.” It acknowledged in a 2004 report on the guidelines’ first 15 years that the guidelines are “significantly more severe than past practice” for “the most frequently sentenced offenses in the federal courts,” including drug trafficking, immigration offenses, and white collar offenses. United States Sentencing Commission,Fifteen Years of Guidelines Sentencing 47 (2004).

So the Commission – or at least the guidelines it’s developed over time – isn’t a wizard; it’s a tiny little man behind a curtain. And it isn’t an emperor with nice new clothes; it’s an emperor with no clothes.

What do we do about that? Expose the tiny little man, see here, and expose the lack of clothes, see here. How? By deconstructing the guidelines. Which I’ll talk about in next week’s post.

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About the Blog

Shortly before I moved on after 28 years of work as a Federal Public Defender, one of the younger attorneys I had the honor to mentor forwarded me an e-mail he’d received from an Assistant United States Attorney. The e-mail complained that my younger colleague was being extremely frustrating, that my colleague was making far too much of a “simple little case,” that the client in the case was going to be deported no matter what, and that my colleague was forcing the prosecutor to “expend a tremendous amount of effort” on what the prosecutor characterized as a “silly issue.” He ended his e-mail by asking, “Have you been hanging out with Carl Gunn?”

Some people would have been insulted by this, but I felt rather proud. Making as much as we can out of what the government sees as “simple little cases,” litigating issues despite the government’s view that they might be “silly,” and “expend[ing] a tremendous amount of effort” on behalf of clients who have the full weight of the government thrown up against them – often with the government’s view that the case is open and shut, or “simple” – is our calling as public defenders and defense attorneys. We all have our different reasons for doing it, but it’s a crucial task – for our clients, our system, and ourselves. As Sir Thomas More was said to say in “A Man for All Seasons” in response to his future son-in- law’s exclamation that he’d “cut down every law in England” to get at the devil: “Oh, and when the last law in England was down and the Devil turned round on you – where would you hide, Roper, all the laws being flat?”

I’m proud if “hanging out with Carl Gunn” means not just accepting the government’s view that cases are “simple” and “little,” that issues are “silly,” and that we shouldn’t expend resources on our clients. Hence the name of this blog: “Hanging out with Carl Gunn.” I hope to offer some thoughts and ideas that the government may think are “silly,” but I respectfully don’t; that you can use in cases that the government may think are “simple,” but aren’t so simple when looked at more critically; and that are an entirely appropriate way to expend our resources. And in the spirit of this being a “hanging out” together, there might be guest bloggers from time to time with their “silly” ideas to offer. I hope you find some of the ideas on this blog helpful and offer whatever comments you might have to add to them.